Public Records: Government Accountability and Government Performance

Some policymaking tasks are straightforward, the right answer obvious.

For safety reasons, we should separate automobiles and motorcycles from bicycles and pedestrians.

People should not fire off live rounds of ammunition in areas where others may be hit by the round, unless they are shooting in self-defense.

Straightforward and obvious.

But most policymaking is more complicated. There are various competing interests, competing values, competing priorities, even competing personal and political agendas that can make policymaking both technically and political difficult.

This is why passing a budget has been so difficult for Congress (passage of a budget today marks a remarkable turnaround). So many interests, so many priorities . . . so many political agendas. The budget covers everything from product safety to national security, from agriculture to education. That’s a lot of room for conflict.

But even a seemingly narrow policy can raise tremendous complications.

Take public records law.

We start with a basic principle: governments are tasked with doing the public’s business. The public hires and elects agents and trustees to conduct business on its behalf. Because governments and their employees are those agents/trustees, the public has a right to an accounting of their activities.

But is the right to that accounting absolute and unlimited?

Well . . . no.

For one, individual members of the public shouldn’t have an absolute and unlimited right to information about every government interaction with every other member of the public. Think about juveniles who are hurt or in trouble. Should a stranger have a right to information about their situation?

Think of surreptitiously recorded videos, secured as evidence by the police, showing innocent and normal but deeply private activities of other citizens (say, in a bathroom or dressing room). Clearly, these sorts of records, though they involve the public’s business in some way, should not be accessible to anyone without limit.

Think about data collected by the government in pursuit of understanding the character and the needs of various segments of the public. Should any member of the public have access to any other member’s responses to a survey, or to the decennial census? Clearly not.

Reasonable and appropriate access also goes to the question of process. While I, as a member of the public, may have a right to a set of documents, some requests for documents will involve considerable amount of time and effort on the part of staff. If the requested information will help me or others evaluate the performance of the government, that investment of time and effort may make sense (though how it is paid for raises questions of the burden the public as a whole should bear versus the burden individuals might be asked to bear).

But if the purpose isn’t to ensure that the government is held accountable, but is simply to impede the ordinary working of the government, we might want to deal with such a request differently. If the purpose is simply to cause scandal or an opportunity for a lawsuit by tripping up employees who otherwise do their job well, it’s not clear how far a “right” to such destructive activity should extend.

If one thinks of government as the enemy, then I suppose one wouldn’t be troubled by policies that can be exploited for personal gain or whose effect is to hobble government in the pursuit of its responsibilities.

But we have governments for a reason. We need the power to act collectively, with authority, to secure certain public goods. There are many things we value that are difficult if not impossible to secure on our own. There are many other things we value that simply are easier to secure collectively. And, let’s face it, there are things we really ought to do that we sometimes don’t want to do. Some of those things, if we don’t do them, will cost us and our neighbors vastly more than we can bear. We need government for those things, too.

In order for us to be confident that governments are working in our interest, we need access to the record of what they do. In order for us to be confident that government can work, we need that access to be reasonable and appropriate.

There are bills pending in both the Florida House and Senate this coming session that address public records issues. It’s good for the Legislature to review the current state of the law and of practice, seeking to ensure that the balance has been struck. I hope they will be as attentive to the public’s interest in the effective working of government as in the public’s right to know.